Thursday, April 28, 2016

Supreme Court Screwup

"If there was one decision I would overrule, it
would be Citizens United. I think the notion that we have all the
democracy that money can buy strays so far from what our democracy is supposed
to be. So that's No. 1 on my list."

Ruth Bader Ginsburg

Note: This blog was published as "Repeal Citizens United" and then the title was changed to "Supreme Court Screwup" to reflect how the law was passed in January 2010.Background

US campaign-spending laws prohibited organizations from financing
election campaigns in the past. In 2007, the conservative lobbying group Citizens United filed a complaint in
District Court about the constitutionality of campaign-funding restrictions.
That gave the case its bizarre name.

In reviewing the petition, the Supreme Court decided that
rather than focus on specific instances on a case-by-case basis, it must
consider the broader issue of political speech as it relates to
the First Amendment which guarantees freedom of speech.

In January 2010, the US Supreme Court ruled 5-to-4 to allow
corporations and unions to fund political campaigns. The 4 dissenters held that
this would corrupt democracy. The winning 5 votes said that the government
could not regulate political speech by limiting election funding. (1)

The downside of the new law is that the definition of organizations
as individuals protected by the First Amendment created a loophole: Unions and small groups
of wealthy donors can exercise too much influence on elections and maintain
that influence after candidates take office. This ruling has reshaped the way
elections are conducted. We have already witnessed the takeover of American
politics by special interests.

Supreme Court
Opinions

Supreme Court Justice Anthony M.
Kennedy’s majority opinion invited a shareholder solution, “through the
procedures of corporate democracy”. In his ivory tower, he was naïve and
mistaken; shareholders have very little power over the corporate executives who
control donations. They certainly don’t control ultra rich donors.

Justice John Paul Stevens
served in the Supreme Court for nearly thirty-five years. Before he retired in
June 2010, one of his last acts was to read aloud a summary of his scathing
dissent of he Citizens United decision. He stated repeatedly that corporations
“are not themselves the ‘We the People’ by whom and for whom our Constitution
was established.” To read the decision aloud was noteworthy; justices only do
so for cases they believe have special merit. Justice Stevens correctly
understood then that Citizens United was wrong. (2)

In an interview with the New Republic, 81-year-old
Justice Ruth Bader Ginsburg said that the Court’s ruling she would most like to
overrule was Citizens United because “it strays so far from what our
democracy is supposed to be.” (3)

PACs and Super PACs

Previously, Political Action Committees (PACs) were
organized to raise and spend money to elect and defeat candidates. Money came
from voluntary contributions and most PACs represented business, labor or
ideological interests.

Technically known as independent expenditure-only
committees, Super PACs may raise unlimited sums of money from corporations,
unions, and individuals, and then spend unlimited sums to overtly advocate for
or against political candidates.

Unlike traditional PACs, Super PACs are prohibited from
donating money directly to political candidates, and their spending must not be coordinated with that of the
candidates they benefit. The result has been a deluge of cash poured into Super
PACs that are only nominally independent from the candidates they support.

Super Pac spending, known as "dark money," never
has to be publicly disclosed. Of the well over $1 billion spent in federal
elections by Super PACs since 2010, nearly 60% of the money came from just 195
individuals and their spouses.

Big Money in Politics

After the new law was passed, political spending
skyrocketed. The 2010 elections saw a record-breaking $489 million spent by
outside groups – 450% increase over 2006.

Super PACs emerged as a major influence in 2012 US politics.
Conservative groups, including a Super PAC led by Karl Rove and another group
backed by the Koch brothers, spent more than a billion dollars trying to take
down Barack Obama. (4)

The total price tag for the 2014 election was nearly $4
billion, the most expensive midterm election in history. It set the stage for the
2016 presidential contest that could approach double-digit billions in
spending. (5)

A New York Times analysis of the 2016 presidential campaigns shows
that 156 families are responsible for more than half the money raised. As of
April 27, 2016, 2,265 groups organized as Super PACs have reported total
receipts of over $700 million and total independent expenditures of over $300
million in the 2016 cycle. (6) The Sunlight Foundation reported that,
“1% of the 1% controls 28% of the political discourse in America.”

According to an analysis by U.S. PIRG Education Fund, 83.7%
of higher fundraising candidates have won their congressional primaries so far
in the 2016 election cycle. Candidates who lack the backing of mega-donors or
vast personal wealth cannot keep up with their big money rivals.

Extortion

What goes on in
Washington is more about moneymaking than lawmaking. The fundamental purpose of
government is being lost in the quest for power and money. Nothing is sacred
under this system – political donations are extorted from every industry. In
the law’s current condition, the line is blurry between the exercise of
constitutional rights and criminal behavior.

In his new book, Extortion:
How Politicians Extract Your Money, Buy Votes, and Line Their Own Pockets,
Peter Schweizer, argues that politicians have developed a new set of
legislative tactics designed to extort from wealthy businesses and compel
donors into forking over huge amounts of cash that is often funneled into
pockets of friends and families. Schweizer’s book delivers hard, documented
facts. (7)

Politics

President Obama was an early critic of the Citizens United
ruling, calling it a "threat to democracy" and a "victory for
Wall Street and Big Business." He criticized the ruling in his 2010 State
of the Union address, saying that it would allow "special interests – including
foreign companies – to spend without limit in our elections."

With Republican-backed Super PACs eclipsing them in
fund-raising, Democrats felt they were left with no other option than also to utilize
Super PACs. The 2012 presidential campaigns clearly illustrated that all the candidates
pushed the limits of campaign finance regulations. (8)

Both Hillary Clinton and Bernie Sanders say that opposing
Citizens United should be a litmus test for the next Supreme Court justice, and
both support a constitutional amendment to overturn it.

Small Donors Dominate

The cost of securing future donations is much lower for
candidates relying on a base of small donors. Sending out email appeals is
almost free. As the campaign drags on, candidates with databases full of
confirmed, donating supporters, can bring in money from those donors over and
over again. Internet commercials incur only the costs to post on websites,
which is much cheaper than TV advertising. Supporters can share messages
through social media. (9)

As the current election process proceeds, the advantage
probably goes to the candidates with a large base of small donors. Bernie
Sanders has shunned Super PACs, raising money from individual, small donors –
the well publicized, “$27 average contribution”. Bernie has shown that
candidates without deep-pocketed supporters can still compete on a relatively
even field.

A new Citizen Super
PAC is striving to empower Americans by providing the first crowdsourcing
platform where voters can select and financially back specific ads for the
candidates, and the issues they support. Their stated aim is to enable every
citizen to have as much political influence as the 1%, without a personal
fortune and an army of lawyers. A worthy aim, but it remains to be seen whether
they will have major impact.

Constitutional
Amendment

Amending the U.S. Constitution is a clear, permanent
solution to curbing the undue influence of money on our democracy. A
constitutional amendment would overturn the flawed Supreme Court decision and
restore the right to protect the government from being captured by private,
wealthy interests. Most of the American electorate truly wants government of the people, by the people, and
for the people.

President Obama has indicated his support for a
constitutional amendment to repeal Citizens United. Presidential hopefuls
Hillary Clinton, Bernie Sander, and more than 200 former and current members of
Congress have also declared their support.

The American public has begun to realize that billionaires
can buy elections. Polls show there is wide discontent about the perceived
influence of big money in US politics and the growing gulf between the
countries’ very rich and very poor. (10)

There are signs of a pushback. Voters across party lines
overwhelmingly support a constitutional amendment to overturn the decision and
curb the influence of money in politics.

A national grassroots movement is developing. More than 5
million people have already signed petitions in support of a constitutional amendment
to overturn Citizens United. You too can join the millions of Americans who've
told their lawmakers to amend the Constitution and overturn Citizens United! (11)

Conclusion

Citizens United is wrong. It must be repealed by a constitutional amendment.

Let’s Engage

Please provide your own feedback, comments and suggestions.
Share our discussion by responding to these questions directly via the blog. If
you prefer, send me an email and I’ll insert your comments.

What is your view of
Citizens United? Are you for, against, or haven’t really thought about it?

Are you Republican,
Democrat or Independent? Does that affect your opinion?

Can you provide any
arguments in support of Citizens United?

Who is your preferred
candidate in the 2016 Presidential Election? Can you summarize your
reasons?

Have you signed up to
repeal Citizens United? Will you? If not, why not?

17 comments:

The effort of trying to limit campaign contributions is like trying to squeeze a balloon. It pops up somewhere else.

I am not fond of the idea that organizations should be able to fund political candidates. That goes for unions, for PACs, for non-profits, for companies, or for any association, for any reason.

Instead, I would prefer to see ONLY individual citizens contribute. They should be able to do so openly for as much money as they care to contribute.

I prefer transparency of who is contributing to what. What we have now is the worst of all worlds, where money flows in, issues get raised, and nobody knows who is pulling the strings.

Can billionaires "buy" elections? Maybe. Can we stop them? No. It is easier and more beneficial to know who is pulling the strings than to try and keep their money from entering the race. I would rather know who gave what than to have to deal with dark money sources.

It's a "systemic" part of Capitalism and Democracy together. When the Capitalists (Big Money) can openly buy elections, it becomes very harmful. The Supreme Court has admitted the error (at least, some of them, the others not openly) but cannot initiate a fix themselves.

Be careful what you ask for Jim. If you regulate the money too tightly, the advertising will start radiating from all sorts of weird sources, particularly sources we can't do anything about (other countries).

To some extent, it already is. Most front running candidates are dogged by rumors that they take money from foreign sources.

I would prefer to see where the money comes from rather than try to regulate how much someone can spend.

In that respect, I don't think Citizens United was wrong. It's just that they did not (nor could they) follow through to the next element of a responsible discussion: Identity.

The notion that someone can hide behind opinions using well endowed small groups of undisclosed donors should scare everyone.

You want civility in politics? Stand up for who you are, put your money where your mouth is, and be ready to express an answer for your critics. That goes for the wealthy, the poor, and everyone in between. Money is the lubricant for effecting policy. It always has been and I do not see how it can be regulated effectively while still being even handed.

It is seeming like we now have one political party, the Plutocrats, with two brands for maximum market penetration. I prefer smoking the Democratic brand myself, but I still worry about its long-term health affects.

Absolutely. Sometimes, they jump the shark, and people begin to notice. Citizens United was one such overreach which, combined with other factors, led to the ascent of Bernie Sanders and Donald Trump (I'm not equating the two, just noting a common stimulus). When Plutocracy becomes Kleptocracy, people start becoming upset with their overlords, and Citizens United seems well-constructed to support an expansion of the money-grab. More political influence, leading to ineffectual government and weakened regulation... profit! Until it all collapses -- but that will happen in a different fiscal quarter, so no problem :-).

1. What is your view of Citizens United? Are you for, against Against.

2. Are you Republican, Democrat or Independent? Independent.

3. Can you provide any arguments in support of Citizens United? No.

4. Who is your preferred candidate in the 2016 Presidential Election? Hillary

5. Have you signed up to repeal Citizens United? Will you? Yes

6. Please add your own comments and suggestions. The Supreme Court's United Citizens decision I think will rank equal to the Dread Scott decision and their confirmation of the internment of the Japanese/Americans in WW II.

I also think there are too many males, Free Market extremists and ultraconservatives on the SC. The SC court is not Supreme because they areinfallible but only because there is no court higher than them.

I've not researched Citizens United per se. But as a marketer and author of a bestseller about the 80/20 principle in business, I can absolutely say that these new rules allow SuperPacs etc allow the 0.1% to wield huge power over the 99.9% and are TOTALLY contrary to the spirit of democracy. This is legalized corruption and even more so in a media saturated age. This law needs to change ASAP.

Jim: By way of your commentary you are lobbying to suppress individuals' right to support a candidate through direct contributions or through a super PAC. I believe you could do more good for America if you focused on motivating all those legally eligible to vote to study the real issues, become fully informed voters, and then encourage them to go out to actually vote their conscience.

This is one of those 'cat is out of the bag'. Just like its hard to convince someone that no one is going to take their guns....but someone convinces them that the "gun seizures" are coming...so they buy more guns. Maybe they will need the money for something else someday, like college for their kids or their families will convince them not to have so many in the house. Same goes for Citizen's United, what will change it is not lawsuits or legislation, but that political spending by large groups is just not a good use of corporate funds. So, they can be convinced by shareholder concerns and I think more immediately, by the great success of campaigns like Bernie Sanders who is receiving so much through small donations online. My two cents. Thank you.

I'm not sure what Citizens United is. If corporations are treated like citizens in the respect of being able to donate to political campaigns, why isn't their overseas income taxed as I understand ordinary citizens are taxed?

2. Are you Republican, Democrat or Independent?

I'm probably more a Libertarian. I don't think that affects my opinion.

3. Can you provide any arguments in support of Citizens United?

No.

4. Who is your preferred candidate in the 2016 Presidential Election?

Preferred candidate? None of the above. Tongue in cheek: Since I'm so unhappy with the choices I think we are going to get, I am personally running for President and would like your vote. I promise you no one could be any worse President than I. Maybe in this manner I can prod someone with the skill and energy to run for the job and we can stop circling the drain and begin taking our country back.

My platform - Call ALL our troops home, furlough them! Get the Generals together and figure out if any of them know HOW to win a war or a battle - Fire about half of them. I think more are incompetent, but we need to keep some good ones.

Term limits for the House and Senate - limited to 8 years. No pensions or Secret Service protection for any of them after they serve. They go home and resume their working careers. If a past President feels he needs Secret Service protection, okay.

Interest rates taken to 5% immediately, which hopefully, would encourage businessmen to make good investments and forego dumb ones. At 5% there would be more saving and more investment in business, creating jobs and wealth.

We begin to pay the National Debt - except in time of war, we don't spend more than we take in in taxes. Tax businesses 10% on profits (it would be better only tax the profits when they are paid out as dividends at ordinary income rates), but that isn't going to happen. I've read some other really good ideas, like do away with the home mortgage interest deduction, but I can't remember them.

I would support legislation to get business out of government and as much as possible to get government out of the way of business!

What is your view of Citizens United? Are you for, against, or haven’t really thought about it?

I am not alarmed by this decision. We have seen that money doesn't buy elections in several well known cases, the most recent being Mr Trump who spent little and Jeb Bush who spent a ton of money. A few years back, Carly Fiorino and Meg Whitman ran for Senator and Governor of California. Each spent millions, Whitman almost $100 million..and lost. In my own State of CT, Mcmanus of World Wide Wrestling fame outspent 10 to 1 for the governorship and lost.

Are you Republican, Democrat or Independent? Independent.

Does that affect your opinion? Perhaps. Quien sabe? Does it matter?

Can you provide any arguments in support of Citizens United?

Tongue in cheek: It helps prove that money can't buy elections? It helps separate fools from their money so that entrepreneurs can manufacture, signs and shirts and buttons for the losing candidates.

Who is your preferred candidate in the 2016 Presidential Election? Bernie Sanders and Donald Trump.

Can you summarize your reasons?

Both have flown out of the glass jar. Out of the cultural and political box! I prefer Sanders because he focuses on the poor and others lost in the political discourse. Trump seems wild and disrespectful, but if he is elected, he too will cast a different light on how we are governed. Both scare the Sh-- out of the oligarchs at Goldman Sachs, the NYT, Big Oil, Big Pharma. That said, the US of A is a monster ship with lots of safeguards. Even if one or the other got a mandate and both houses of Congress, they would have many blocks in their way...federal courts, state governors and legislatures, the Federal Reserve and scores of other independent agencies. And the very people who elected them.

One scary point: The Supreme Court may be turned Right or Left in the next four years. That will strengthen or weaken the Conservative or Progressive agenda for many years. The gods will decide in November.

Have you signed up to repeal Citizens United? No

Will you? Maybe

If not, why not? Time is not of the essence.

Please add your own comments and suggestions.

Every presidential election is a snapshot of the national mood at a moment in time. This primary season has revealed the anger and desperation of the disenfranchised, the poor and working class in an unparalleled way. It reveals tears in the social fabric, that, if not remedied, could result in an uprising in our beloved country. I hope our 'leaders" get this and begin to allocate financial resources in a more equitable fashion. I am hopeful. Thanks. Papa Jimbo

Passing more laws to determine who can give money to candidates in what amounts will not solve this problem. Anyone that believes in less regulation and more freedom could not go along with more regulation in this area. The solution is quite simple and follows from the concept of separation of Church and State.

We have separation of Church and State to prevent the government from passing laws controlling what one believes in and how one practices his or her religion. Without that, we would be similar to Iran and other Middle Eastern countries.

In the same way, we should have separation of Economics and State. Thus no individual - president, senator, etc. - would have the power to regulate how you make your money or spend your money (unless of course, one is using fraud and force).

With this separation, no matter how much you give a candidate, the candidate would have no power to help your business in any way.

Our country has never had this separation of Economics and State and thus we pile regulation upon regulation where most of the later regulations are necessary to solve problems caused by the earlier regulations.

Our country was created based upon the Declaration on Independence. It is a shame we did not follow it.